Legal Implications of Social Media

Ryan Garcia

Dell Legal

@SoMeDellLawyer

SoMeLaw.wordpress.com

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What I don’t like about social media password legislation

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Smart employers are scared of social media accounts in the first place

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Race

Gender

Pregnancy

National Origin

US Citizenship

Religion

Age

Disability Genetic

Data

Retaliation

Sexual Identity

Sexual Orientation

Appearance

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It’s my minefield, I can sweep if I want to

• If an employer is prepared to brave the minefield it is because they need to – Social media skills are relevant to many positions – Not just tangential but core

• Great response by Gov. Christie to recent NJ legislation: http://bit.ly/njsocial

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Private Public Accessible

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Laws that forget to ask “Why?”

• Controversy began when Robert Collins was asked for his password when re-applying for his job with the Maryland Department of Corrections

• Despite this leading to the wave of publicity and legislation, several proposed laws exempted state agencies or law enforcement departments

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Laws that don’t understand the technology

• Usernames and passwords are not the same • Twitter is not Facebook is not LinkedIn is not YouTube is not… • Concentrates on employers rather than the ones holding the

information

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What I like about social media password legislation

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Starts the conversation about privacy

• US has a very corporate friendly view of privacy

• Some broad areas of protection – Medical information (HIPAA) – Children (COPPA) – Credit/Financial (Moolah)

• Some narrow areas as well – Video Privacy Protection Act of 1988 (Netflix just lobbied for change) – Telephone Consumer Protection Act of 1992 (Do Not Call—2003)

• Compare to European Convention on Human Rights – Article 8.1. Everyone has the right to respect for his private and family life,

his home and his correspondence.

• France has advocated for a Right to be Forgotten; the US scoffs • Then the FTC in 3/12 Protecting Consumer Privacy in an Era of Rapid

Change recommends platforms explore a social media “eraser button”

• Password legislation pushes the conversation, and that‖s good

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“I think this is a solid step to

give people privacy, but I would not be shocked if there‖s some

new app or application or a laser beam hologram technology we

haven‖t dreamed of yet that makes further work necessary.”

– Gov. Jay Inslee (WA)

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Social media policy concerns

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Social Media Risk: Connections

• Everything and everybody is connected • People will view your actions negatively if you aren‖t transparent • It will happen before you know it

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Social Media Risk: Informal Tone Beast

• Social media may make you say things forgetting that everyone is watching

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Employer Social Media Policies

• Huge difference in policies out there • Microsoft: “Don‖t be stupid.” • Cisco: 22+ pages • Dell‖s: ~900 words, conversational

– Focus on readability and retention – Already had other organizations ask for permission to copy our policy

and reuse, answer is yes – Forbes called out Dell policy for being easy to understand and “forward

thinking” in discussing account ownership

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But Let’s Talk About the NLRB

• Over the past few years the NLRB has been particularly active regarding social media policies and cases where employees were fired over social media usage

• There‖s a great deal of confusion over policies due to language the NLRB does not like: – “Don‖t reveal confidential information” – “Communications with co-workers…that would be inappropriate in the

workplace are also inappropriate online” – “Think carefully about ―friending‖ co-workers” – “Don‖t disclose…personal information about employees…in any way on

social media” – Encouraging problems with co-workers be solved offline – Oh, and they still won‖t like if you include a savings clause – “Don‖t reveal material non-public information”

• Please don‖t make it more complicated

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Future areas of concern

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Death and Social Media

• Social media platforms don‖t want to own your content, they just want broad licensing rights to use as they please

• Content still owned by you • Meaning it should pass to your estate • But platforms treat deceased users accounts differently, and gaining

access can be problematic • RI and CT addressed email; OK, ID, IN have addressed social media

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Many Other Areas • Elections: Smartphone ban for cameras, what about for ballots and

polling places? • Disaster communications: Amber alerts on social media? • Justice: Parking violations? • Wisdom of the crowd: find traffic hot spots, potholes?

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Never Underestimate The Desire Of The Internet To Work For Everyone’s Benefit • For free

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Questions?

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The Social Media Explosion

• Video can be found at • http://bit.ly/coolsocialmediavideo

but let‖s review some key stats, shall we?

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Social Media Fun Stats (because I don’t have time to show you a 2:35 video!) • 1 in 5 couples meet online (3 in 5 gay couples) • 1 in 5 divorces involve Facebook (not sure if connected to first stat) • What happens in Vegas stays on Facebook, Twitter, YouTube,

Renren, Flickr, etc. • Lady Gaga, Justin Bieber, and Britney Spears have more Twitter

followers than the population of – Sweden – Israel – Greece – Chile – Australia

• Ford Explorer launch on Facebook generated more traffic than a Superbowl ad

• YouTube is the second largest search engine in the world • 90% of consumers trust peer recommendations; only 14% trust ads

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Is Social Media New?

• Social media is any tool or service that uses the Internet to facilitate conversations

• These emerging platforms differ from earlier technologies in two significant ways: – Social media is sticky

Because they connect networks of individuals in a highly personal way, most online activity is concentrated on social media

– Social media is fast Information spreads virally from one to many to many more

• What has made social media so pervasive

is also what makes it risky

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